Peremptories — Love ‘Em or Leave ‘Em?

 Posted on March 05,2009 in Uncategorized

Prompted by this WSJ article noting that some critics of peremptory challenges in jury selection would like to see peremptories limited to three per side, Walter Olson of Overlawyered (@WalterOlson) and Scott Greenfield of Simple Justice (@ScottGreenfield) have been engaged this morning in a twitter conversation about peremptory challenges (and, not incidentally, clever lawyers). They've been joined by Dennis Elias of JuryVox (@JuryVox) and PopeHat (@PopeHat).

Here's a little (because I expect each of these people, as well as Anne Reed of Deliberations (@AnneReed) to blog on the topic today) of what the players have tweeted:

1. Walter: "Gamesmanship on perempts not only tilts to cleverer lawyer, but could increase lottery effect by ousting skeptic voices."

2. Scott: "re: limiting perempts to 3: Only if you limit biased jerks on the jury to 3. Otherwise, the numbers don't add up."

3. Dennis: "Juror biases are pervasive and strongly affect their ability to follow the instructions. Peremps are necessary solution."

4. PopeHat: "Point of trial is resolution of dispute – social interest served by nonviolence, reluctant to concede more to society"

The WSJ article focuses on the criticism that peremptory challenges are often aimed at minority jurors. As a preliminary matter, the "clever lawyers" aren't striking people for their race if they can possibly avoid it; any lawyer who strikes a juror because of his race has already regrettably failed to select the best jury for his client. The least authoritarian white jurors are vastly worse for the State than the most authoritarian black jurors. So the critics' concern is incompetent use of peremptory challenges; their solution to the incompetent use of peremptory challenges is to limit each lawyer to three strikes. (This would be a reduction from ten in a felony case in Texas, with a panel of 60 or more potential jurors.)

The three-strike limit per lawyer is spun by the critics of peremptory challenges as a "compromise" - "Three strikes would allow attorneys to get rid of truly troubling jurors, who don't cop to bias." Speaking of copping, here are the people we're talking about: anyone who seems to have some interest in the outcome - the mother of a cop, the mother of a con, the guy who says he was unjustly prosecuted for DUI last year - but who (out of a either lack of self-awareness or an insufficiency of honesty) won't admit bias.

It's not hard for a potential juror to say all the right words to avoid a challenge for cause; if the juror says those magic words, no matter how much nudging and winking he's done, he's not challengeable for cause (unless the judge is aberrantly concerned with fairness).

I understand the democratic impulse just to seat the first 12 qualified jurors who claim that they can be fair, and let them decide the case. It's related to the democratic impulse to let the legislatures write whatever laws they want without interference from those elitist courts. We Americans aspire to democracy, and the vast ignorant masses of average-and-lower intelligence think that they, by virtue of their great numbers, are the ones most qualified to decide how everyone else must behave. Even if this were a democracy, though, twelve people (randomly selected from among those who were qualified and who claimed that they could be fair) couldn't be relied upon to carry out the will of society. It'd be a smallsampleocracy, and we know from statistics that the smaller the sample, the greater the error.

On a sixty-juror panel, there are always more than six people who say all the right words, but who say or do something that objective observers reasonably see as implying an underlying unfairness to one side or the other. The people at the far ends of the opinion spectrum aren't all just "skeptic voices"; many of them are certifiable nutjobs. (This is true even if we oversimplify jurors' views to a single dimension.)

Reducing the number of peremptories to three isn't a "compromise"; it's a random gutting of the adversarial system that helps protect us all from the random error of smallsampleocracy.

A modern jury trial is like trial by combat. The aggrieved hire champions to go forth and do battle; the outcome depends in part on the quality of the champions. Take away the advantage of the cleverer lawyer, take away the element of skill, and the jury trial becomes trial by ordeal.

[Update: Patrick at PopeHat expands on his view.:

A trial does not belong to society, nor does it belong to a juror. It belongs to the parties, the plaintiff and the defendant (or in criminal cases, the defendant who is facing the crushing weight of the state). Their perceptions are what matter, and impeding their ability to get what they perceive to be a fair trial creates the perception of injustice.

Update 2: Ken at PopeHat does too:

There are no crazy-filters on jury service. Of the first twelve people to show up in the box, three may be gadflies, grudgeholders, or nuts. Absent my ability, and my opponents' ability, to weed some of those people out, that handful of people may shape the experience for everyone in the courtroom. That's not the way to get a fair trial on the merits for anyone.

Update 3: Scott Greenfield does as well:

As much as we may want to believe that the vast majority of people are normal, reasonably intelligent and capable of faithfully following the instructions of a judge, trial lawyers are forced to test the thesis, and find it wanting. As pessimistic as this may sound, it's true, as any lawyer who has chatted with a jury after a verdict will tell you. Not that lawyers are any more normal, but it remains our job to make the choices for our client.So does our exercise of peremptories fix the problem? Not for us. Not for Walter. Not for anybody. But without it, the lawyers and parties would most assuredly doubt that they've got a fair jury. With peremptories, the comfort level is slightly higher. And until we come up with a better way, that's the best we can get.]